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Broken-Nosed Fan Assumed Injury Risk During Pregame Warm-Up, N.Y. Judge FindsEvery baseball fan -- or at least every attorney who follows baseball -- knows that under the doctrine of assumption of the risk a team is not liable for fans injured by, say, foul balls or broken bats. Now, in a suit filed by a New York fan whose nose was fractured by a bat during a Brooklyn Cyclones pregame, a New York judge has ruled that the doctrine also extends to a bat "propelled" by a player either "warming up" or "horsing around."
New York Law Journal2009-09-03 12:00:00 AM
Every baseball fan -- or at least every attorney who follows baseball -- knows that under the doctrine of assumption of the risk a team is not liable for fans injured by, say, foul balls or broken bats.
Now, in a suit filed by a fan whose nose was fractured by a bat at a Brooklyn Cyclones game, a Brooklyn judge has ruled that the doctrine also extends to a bat "propelled" by a player either "warming up" or "horsing around."
"Among the dangers to which a baseball spectator has consented to is the danger that a loose baseball bat will strike a spectator and cause injury," Supreme Court Justice Mark I. Partnow held in Elie v. City of New York, 20244/03.
"Here, plaintiff, a seasoned spectator of baseball, assumed the risk of many dangers, including the danger of being struck by a loose bat. Movant has thus established entitlement to judgment as a matter of law based upon the doctrine of primary assumption of risk."
The court granted the motion for summary judgment filed by the St. Louis Cardinals, L.P. -- the employer of the player, outfielder Joey Vandever, who "propelled" the bat.
The tort action stemmed from an incident during pregame warm-ups at a game between the Brooklyn Cyclones and the Cardinals' NewJersey affilliate at Coney Island's Keyspan Park on July 22, 2002.
In his complaint, plaintiff Gerard Elie, a season-ticket holder who sat 15 feet off the third-base line, alleged that during pregame warm-ups, an unnamed Cardinals player negligently lost control of a bat, which struck Elie, fracturing his nose. That player has since been identified by the team as Vandever, a since-released 44th-round draft pick.
Although Vandever played for the Cardinals' New Jersey affiliate, he was technically employed by the major league team -- St. Louis -- which was one of nine defendants named in the case.
How Vandever lost control of his bat is not clear. In Elie's original reply to the St. Louis Cardinals' motion, he called the incident negligent. In a supplemental reply, he asserted that the act was intentional or reckless, and he offered in support the affidavit of a friend who attended the game.
For the purposes of this motion, Partnow assumed it to be negligent, noting that the St. Louis Cardinals would not be liable were it intentional.
Whatever the cause of the bat's propulsion, Elie argued he did not assume that particular risk.
"Plaintiff asserts that the authority cited by movant supports the mere proposition that a spectator assumes only commonplace risks -- such as, the risk of a loose bat or ball reaching the stands during the game or batting practice -- associated with attending a baseball game," Partnow wrote. "Plaintiff argues that, here, in contrast, it was not commonplace for the subject player to horse around with the subject bat during no organized batting activity, either during the game or practice beforehand."
For their part, the St. Louis Cardinals contended that "a spectator, who observes close players swinging baseball bats in an unshielded area of a baseball stadium yet remains nearby, assumes the risk of being struck by a loose bat."
The court sided with the team.
"The contention that summary judgment should be denied because the subject player was 'horsing around' and not engaged in batting practice when the subject bat became loose implies that primary assumption of risk applies only during certain distinct times while attending a baseball game," the judge concluded. "This implication is false."
The court relied on, among other precedents, one involving former New York Mets relief pitcher Dennis Cook. In that case -- Pira v. Sterling Equities, 16 AD3d 396 -- the Appellate Division, Third Department, found that a ball thrown by Cook to fans at Shea Stadium that struck and injured a man constituted "pre-game warm-up," and that such warm-up falls within the assumption-of-risk doctrine.
Alexander J. Drago of Fabiani, Cohen & Hall represented the St. Louis Cardinals.
Drago said the decision extends assumption of the risk to pre-event activities.
"The law has been clear for decades in New York, that if a spectator is hit by a ball or a bat during a game, there's an assumption of risk," Drago said. "If we accept plaintiff's version [of the events] -- that the players were 'horsing around' -- the judge has expanded [the doctrine] to any pregame activity in which players engage before the game and on the field."
Dennis Matarangas of Bourhazos & Matarangas represented Elie.
Matarangas said he believed the judge stretched the assumption of risk "a little bit too far," but that his client continues to attend Cyclones games.
"He's a true fan," Matarangas said.
The tort action against several other defendants, including the Cyclones, the City of New York and Vandever, remains ongoing.
Vandever, who played just a single season of minor league baseball, was released by the Cardinals two months before Elie filed suit. He now works as a sales representative for a medical supply company.